RECONSTRUCTION. 



.,>• SPEECH 

OF 




HON. S; SHELLABARGER, OF OHIO, 



DELIVERED IN THE HOUSE OP REPRESENTATIVES, JANUARY 8, 1866, 




,The House being in the Committee of the Whole on 
the state of the Union — 

Mr. SHELLABARGER said : 

Mr. Chairman: I shall inquire whether the 
Constitution deals with States. I shall discuss 
the question whether an organized rebellion 
against a Government is an organized "State" 
in that Government; whether that which can- 
not become a '' State" until all its officers have 
sworn to support the Constitution, remains a 
State after they Bave all sworn to overthrow 
that Constitution ; and if I find it does continue 
to be a State after that, then I shall strive to 
ascertain whether it will so continue to be a 
government, a State, after, by means of uni- 
versal treason, it has ceased to have any con- 
stitution, laws, Legislature, courts, or citizens 
in it. 

If in debating these questions I debate axioms, 
my ajjology is that there are no other questions 
to debate in "reconstruction." If in the dis- 
cussion I make self-evident things obscure or 
incomprehensible, my defense shall be that I 
am conforming to the usages of Congress. 

I will not inquire whether any subject of this 
Government, by reason of the revolt, passed 
from under its sovereignty or ceased to owe it 
allegiance, nor whether any territoz-y passed 
from under that jurisdiction, because I know 
of no one who thinks that any of these things 
did occur. I shall not consider whether, by the 
rebellion, any State lost its territorial charac- 
ter or defined boundaries or subdivisions, for I 
know of no one who would obliterate these geo- 
graphical qualities of the States. 

These questions, however much discussed, 
are in no practical sense before Congress. 

WHAT IS BEFORE CONGRESS. 

What is before this Congress — by far the most 
momentous constitutional question ever here 
considered — I at once condense and affirm in a 
single sentence. 

It is under our Constitution possible to, and 
the late rebellion did in fact so, overthrow and 
usurp in the insurrectionary States the loyal 
State governments as that, during such usur- 
pation, such States and their people ceased to 
have any of the rights or powers of government 
as States of this Union ; and this loss of the 
rights and powers of government was such that 
the United States may and ought to assume and 
exercise local powers of the lost State govern- 
ments, and may control the readmiasion of such 



States to their powers of government in this 
Union, subject to and in accordance with the 
obligation' to "guaranty to each State a repub- 
lican form of government." 

This ^eat question I proceed to consider. 

WHAT, BY THE LAW OF NATIONS, IS A STATE? 

At the very foundation of this discussion lies 
the question, what make up the necessary ele- 
ments of every State in this Union? What 
properties are they which, if any one be lost by 
a State, it ceases to be entitled to exercise the 
powers and demand the rights of a political and 
governing member of that Union ? 

The argument I now derive from "public 
law" is really identical with the one I shall 
next adduce, and shall base upon the express 
terms of the Constitution. In this argument — 
assuming, as I do, two axioms of our law ; first, 
that the law of nations is part of your Consti- 
tution, (Const., art. 1, see. 8, clause 10,) and 
second, that such Constitution is to its States, 
at least, as much "supreme law" as the inter- 
national code is law to the civilized States which 
are under its sway — I here only show that these 
law-defying communities in rebellion cannot be 
"States," unless our Union has lowered and 
debased the world's "legal idea" of a "State." 

What, then, is required to constitute a State 
by the law of nations? * 

We answer: 

1. "A fixed abode and definite territory be- 
longing to the people who occupy it. ' ' ( Whea- 
ton, 33.) 

2. "A society of men united together for the 
purpose of promoting their mutual safety and ad- 
vantage by their combined strength. " {lb. 32. ) 

3. ' ' The legal idea of a State, necessarily im- 
plies that of habitual obedience of its members 
to those in whom the superiority is vested," 
[lb. 33.) 

This third necessary element of a State is the 
only important one in this discussion. Hence, 
I add the following high authorities : 

Grotius, (book 8, chapter 3, section 2,) says: 

"The law, especially that of nations, is in the State 
as the soul is in that of the human body, for thutbeing 
taken away it ceases to he a State." 

Sir, let me entreat the Representatives of the 
people to apprppriate to the purposes of the hour 
this light which comes to us from him whose in- 
tellect has Lighted, for centuries, the pathway 
of all civilized natfftns, and who is the Father 
of the Public Law. 



RECONSTRUCTION. 



SPEECH 



HON. S: SHELL ABARGER, OF OHIO, 




DELIVERED IN THE HOUSE OP REPRESENTATIVES, JANUARY 8, 1866. 

V ... ' ' • 



States to their powers of government in this 
Union, subject to and in accordance with the 
obligation' to "guaranty to each State a repub- 
lican form of government." 

This ^eat question I proceed to consider. 

WHAT, BY THE LAW OP NATIONS, IS A STATE? 

At the very foundation of this discussion lies 
the question, what make up the necessary ele- 
ments of every State in this Union? What 
properties are they which, if any one be lost by 
a State, it ceases to be entitled to exercise the 
powers and demand the rights of a political and 
governing member of that Union ? 

The argument I now derive from "public 
law" is really identical with the one I shall 
next adduce, and shall base upon the express 
terms of the Constitution. In this argument — 
assuming, as I do, two axioms of our law ; first, 
that the law of nations is part of your Consti- 
tution, (Const., art. 1, sec. 8, clause 10,) and 
second, that such Constitution is to its States, 
at least, as much "supreme law." as the inter- 
national code is law to the civilized States which 
are under its sway — I here only show that these 
law-defying communities in rebellion cannot be 
"States," unless our Union has lowered and 
debased the world' s ' ' legal idea " of a " State. ' ' 

What, then, is required to constitute a State 
by the law of nations? ' 

We answer: 

1. _ " A fixed abode and definite territory be- 
longing to the people who occupy it. ' ' ( Whea- 
ton, 38.) 

2. "A society of men united together for the 
purpose of promoting their mutual safety and ad- 
vantage by their combined strength." (lb. 32.) 

3. '■ ' The legal idea of a State, necessarily im- 
plies that of habitual obedience of its members 
to those in whom the superiority is vested," 
(76. 3.3.) _ 

This third necessary element of a State is the 
only important one in this discussion. Hence, 
I add the following high authorities : 

Grotius, (book 3, chapter 3, section 2,) says: 

"The law, especially that of nations, is in the State 
as the soul is in that of the human body, for thatbeiiig 
taken away it ceases to he a State." 

Sir, let me entreat the Representatives of the 
people to apprppriate to the purposes of the hour 
this light whieli comes to us from him whose in- 
tellect has lighted, for centuries, the pathway 
of all civilized natrons, and who is the Father 
of the Public Law. 



.The House being in the Committee of the Whole on 
the state of the Union — 

Mr. SHBLLABARGER said : 

Mr. Chairman : I shall inquire whether the 
Constitution deals with States. I shall discuss 
the question whether an organized rebellion 
against a Government is an organized "State" 
in that Government ; whether that which can- 
not hecoinc a " State" until all its officers have 
sworn to support the Constitution, remams a 
State after they Have all sworn to overthrow 
that Constitution ; and if I find it does continue 
to be a State after that, then I shall strive to 
ascertain whether it will so continue to be a 
government, a State, after, by means of uni- 
versal treason, it has ceased to have any con- 
stitution, laws, Legislature, courts, or citizens 
in it. 

If in debating these questions I debate axioms, 
my apology is that there are no other questions 
to debate in "reconstruction." If in the dis- 
cussion I make self-evident things obscure or 
incomprehensible, my defense shall be that I 
am conforming to the usages of Congress. 

I will not inquire whether any subject of this 
Government, by reason of the revolt, passed 
from under its sovereignty or ceased to owe it 
allegiance, nor whether any territory passed 
from under that jurisdiction, because I know 
of no one who thinks that any of these things 
did occur. I shall not consider whether, by the 
rebellion, any State lost its territorial charac- 
ter or defined boundaries or subdivisions, for I 
know of no one who would obliterate these geo- 
graphical qualities of the States. 

These questions, however much discussed, 
are in no practical sense before Congress. 

WHAT IS BEFORE CONGRESS. 

What is before this Congress — by far the most 
momentous constitutional question ever here 
considered — I at once condense and affirm in a 
single sentence. 

It is under our Constitution possible to, and 
the late rebellion did in fact so, overthrow and 
usurp in the insurrectionary States the loyal 
State governments as that, during such usur- 
pation, such States and their people ceased to 
nave any of the rights or powers of government 
as States of this Union ; and this loss of the 
rights and powers of government was such that 
the United States may and ought to assume and 
exercise local powers of the lost State govern- 
njents, and may control the readmi^sion of such 






Burlamaqui, (volume 2, page 25,) in defin- 
ing a State says : 

"It is" a multitude of people united together by a 
common interest and common laws, totohichthey sub- 
mit with one accord." 

I might add to these all the writers on pitb- 
liclaw i'or centuries, in confirmalion of what is 
self-evident without proof, that there can bono 
State where the people do not habitually obey the 
laws. For four hundred years the unanimous 
conscience and common sense of the civilized 
world }ias refused to recognize the existence 
of a people who were habitually disobedient 
to their own laws, or the law of natioi!s. Such 
a people is blotted out. 

Now, surely, if lu^bitual obedience to law 
'/was necessary to the legal idea of a State," 
even-under the vague and ^neral. precepts of 
the international code, it \vnl not be insisted 
that habitual, persistent, and universal diso- 
bedience will be tolerated by the well-definect, 
express, and rigorous provisions of the Amer- 
ican Constitution in the citizens of one of its 
States. • 

. Shall that position be tolerated which admits 
that the law of nations will expel from its 
union and blot from existence an habitually 
lawless people, and yet the law of our Union 
permitsUch a State to govern it? Shall a Union, 
whose Constitution and laws in every single 
great attribute of national sovereignty are the 
supreme law. of these States and their people, 
recogniae and be ruled by a people who unani- 
mously, habitually, persistently, and for years 
disobey and defy these laws? 

Can it be that for four centuries the united 
conscience and judgment of the civilized world 
shall prohibit the existence upon the' earth of 
such a monster as a State whose people are 
haljitually lawless, and then shall it be left for 
our ' 'more perfect Union' ' to establish ' ' States' ' 
which, although they cannot commence their 
existence until every officer and minister of that 
State shall swear to support the Constitution of 
the United States, as the supreme law of the 
land, yet shall conthiTie to be States after every 
officer of such State had discarded such oath, 
and every inhabitant had, for years, defied and 
discarded these ''supreme laws?" 

In the lights of the public law of the world 
let this Congress answer the startling question, 
whether an organized rebellion has come to 
be an organized ' ' State ;" whether ' ' habitual' ' 
treason has come to be "habitual obedience to 
law ; ' ' and whether the legal ' ' idea of a State' ' 
has come to be a synonym for chaos, in which 
are commingled, in unalleviated political ruin, 
the absolute overthrow of all its "supreme 
laws," the wreck of all loyal constitutions, 
laws, and forms of government, and the death 
or exile of every inhabitant who admitted the 
existence of such loyal State I 

Surely, Mr. Chairman, it is not too much to 
say that even under the settled precepts of pub- 
lic law those eleven districts, called "confed- 
erate. States," ceased to be States. In them, 
during so many dark years, there was no obe- 
dien<"e to law except the law which compelled 
the defiance of all " suprenft laws ;" there \yas 
no government except that one which con- 



sisted in enforcing disloyalty tp Government; 
there was no observance of the "law of na- 
tions," unless that is to be found in indiscrimi- 
nate and remorseless assassniation or murder 
of every loyal man whom their treason could 
reach either by means of the dagger, the tor- 
pedo, the poisoned food, the bandit, the viola- 
tions of truce, or the systematized destruction 
of prisoners of war. Their body-politic was 
one gigantic treason, made up of eleven organ- 
ized rebellions, combined into one by the force 
of a relentless military despotism. 

But, sir, the unexampled magnitude- oi^these 
interests involved impel me on to what are, if 
possible, more conclusive arguments. I go from 
the public law to the Constitution. 

WHAT IS A STATE OF THIS UNION? 

Now we proceed to inquire what, if anything 
more, is required to make a State of this Union 
than is requisite to constitute a State under the 
law of nations. Brazil is a State, but is not a 
State of this Union. That which is required 
to be added to the properties which belong to 
every State, in the sense of the international 
law, in order to constitute a State of our Union, 
is — 

1. Its citizens must owe, ticknowledge, and 
render supreme and habitual allegiance and 
obedience to the Constitution, laws, and treaties 
of the United States in all Federal matters, 
these being the supreme laws to the States and 
their citizens. (Constitution, article 6.) 

2. All "the members of the State Legisla- 
tures, and its executive and judicial officers, 
shall be bound by oath or affirmation to support 
the Constitution" of the United States. (Ar- 
ticle 6.) 

3. That the United States shall have so "ad- 
mitted it into this Union" (article 5, section 
3) as to have assumed "to guaranty to it a re- 
publican form of government, and to protect it 
againstinvasion,and," on application, "against 
domestic violence." 

4. And by such recognition and " admission 
into this Union" to have secured to it, as a 
body-politic, or "State," certain rights of par- 
ticipation in the control of the Federal Gov- 
ernment ; which rights I shall name hereafter. 
(See also 1 Bishop on Criminal Law, sections 
128 to 137, inclusive.) 

No one who can read the Constitution will 
deny that each State in this Union must have 
every one of these properties before it can com- 
mence to exist in the Union ; because the Con- 
stitution so declares. Now the question I 
consider is, whether it shall continue to be a 
State, in the sense that it holds the powers and 
rights of a State, after it has lost every property 
which it must have before it could commence to 
exist in the Union. 

DOES THE CONSTITUTION DEAL WITH STATES? 

The gentleman from New York [Mr. Ray- 
mond] says: 

"The Constitution does not deal with States except 
in one or two instances, as the election of members 
of Congre.ss and the election of electors of President 
and Vice President." 

This statement involves an error both of fact 
andlaw which, considering; its l^--' ' ■ intelligent 



and patriotic scgirce, is amazing. Now, sir, read- 
ing English will correct this error. Turn to the 
Constitution. It deals with States, in the way 
of imposing restraints and obligations upon 
them as States, in the following matters : reg- 
ulating commerce among the States ; requiring 
Representatives, also United States Senators, 
to reside in their respective States; prohibiting 
States from entering into any treaty, alliance, 
or confed(#ation, coining money, emitting bills 
of credit, making anything but gold and silver 
coin a tender for debt ; passing any bill of at- 
tainder, cxpostfa'-fo law, or law impairing the 
obligation of contracts; from taxing imports 
or exports without consent of Congress; from 
laying tonnage duty; from keeping troops or 
ships of war in time of peace ; from entering 
into any coippact with another State or foreign 
Power; from engaging in war unless invaded or 
in imminent danger thereof; from refusing to 
give full iiiith to rec6rds, &c., of other States; 
from refusing to surrender fugitives from justice 
or labor; in requiring States to be tried in the 
courts of the United States;, requiring all their 
officers to lake an oath to support the Consti- 
tution ; requiring them to pay State's proportion 
of direct taxes; in prohibiting ''either" State 
from conferring any other emolument upon the 
President than his salary ; In requiring them to 
furnish, at command of the President, their 
militia; and in subordinating their "judges," 
••constitutions," and "laws" to the Constitu- 
tion, laws, and treaties of the United States as 
"the supreme law of the land." 

It secures rights and confers powers upon 
the States as States in each of the following re- 
spects. It secures to each the right to elect at 
least one Representative, to elect two Senators, 
to cast one vote in ratifying constitutional amend- 
ments, and in calling a convention to make such 
amendments; to cast one vote in electing a 
President in the House, to appoint in such man- 
ner as the Legislature thereof may direct elect- 
ors to elect a President and Vice President, to 
fill by appointment vacancies in Congress, to 
demand that "in the regulation of commerce 
no preference shall be given to the ports of one 
State over those of another," in securing equal 
immunities to their respective citizens, in having 
guarantied to them republican governments, in 
being protected against insurrection and do- 
mestic violence, in securing' them from being 
divided, &c., and in enabling them to define the 
qualification of' electors for United States offi- 
cers by fixing that of the most immerous branch 
of the State Legislatures. 

My object, Mr. Chairman, in reciting these 
fifty or more supremely important provisions of 
the Constitution, in every ono of which it is evi- 
dent, both by the nature and express terms of 
the provisions themselves, and by the innumer- 
able adjudications of the courts, that the Con- 
stitution "deals with" the States, as such, was 
not the frivolous one of showing that there were 
more than " one or two" of these. My pur- 

fiose was the higher one of showing how base- 
ess that argument was which was based upon 
the assertion that the Constitution did not deal 
■with States but individuals only, and that, there- 
fore, not the States, but only individuals could 



lose their rights under such Constitution. I 
wanted not only to show the argument baseless 
but that its precise opposite is the exact truth. 
I wanted to show that the very body, soul, life, 
and essence of the Constitution is penetrated, 
pervaded, and characterized by and -with this 
recognition of the States, and of their hi^h pow- 
ers as such. I wanted to bring into view the 
momentous and controlling fact which disposes 
of this high constitutional question, that the 
States are not only "dealt with" by the Consti- 
tution, but that their powers as States in our 
Government are absolutely vital. And I sep- 
arated the obligations and restraints imposed 
upon the States and their officers from the con- 
ferments of rights and powers upon them, that 
it might appear to all men and to the very chil- 
dren who can read their Constitution, that, in 
this marvelous groat scheme of Government, fis , 
in every otherwise human Goyernment, as well 
as in God's, the enforcements of obligation are 
coupled with and inseparable from the enjoy- 
ment of rights; that prescribed qualifications 
for the attainment of power must be possessed 
and proceed, and are inseparable, from the ex- 
ercise of power. I wanted to show that there 
could be, under the Constitution, none of the 
rights or powers of a State where there were 
recognized none of the obligations or duties of 
a State. 

Sir, how long may this nation survive with a 
Senate elected by r'ebel Legislatures ; or with 
treaties made by Senators chosen by rebel 
States ; or with a President selected by electors 
chosen by the Legislature of South Carolina ; or 
with a President elected in a House of Repre- 
sentatives where each rebel State casts one vote ; 
or with a House of Representatives elected by 
electors whom a rebel legislature would author- 
ize to vote ; or with officers over United States 
forces appointed by rebel governors ; or with 
such constitutional amendments as would_ be 
ratified by rebel legislatures ; or with a traitor 
for President whom you could' only remove by 
the impeachment of a Senate elected by rebel 
legislatures; or with such foreign ministers 
and other officers of the United States as such 
a Senate would confirm ; or with a prohibition 
upon your closing the ports of the eleven rebel 
States to a commerce supplying them with all 
the supplies of war, unless you also closed all 
the ports of the other States? 

Sir, if the recital of these powers which the 
States, as such, hold in governing this Union, 
does not prove that a State in rebellion, and 
whose government and people are in actual hos- 
tility to the United States, is not a component 
part of this Union, during the continuance of 
such rebellion, for the purpose of exercising 
any power, then such recital does prove other 
things. It proves that " Independence Hall" 
was a mad-house from the 14th of May to the 
17th of September, 1787 ; and that the madmen 
there succeeded in devising a framework of 
Government embodying in it a larger number 
of separate and fatal instruments of self-slaugh- 
ter than' was ever combined in a Government 
before, or than was ever dreamed by men who 
make Utopias, or by them who form govern- 
ments in Bedlam. 



CONGRESS HAS ASSUMED THAT REBEL STATES HAD 
NO UiailTS AS STATES. 

I admit that tho action of this Government 
was not, at all times during the war, harmoni- 
ous nor consistent upon the matter of according 
rights to rcl;)el districts. It would have been 
strange, indeed, if all such action, done, as it 
was, in the midst of the awful events -of such 
wars, revolutions, and breakings up of the sys- 
tems of governments, had been consistent upon 
any sulycct. Besides, as mere measures of 
war, there was constant temptation to err, if at 
all, in the direction of according to loyalty in the 
insurrectionary districts every possible protec- 
tion and power, to the end that it might be 
developed into support of a Government stag- 
gering to its fall under the blows of treason. 

But still the most solemn and deliberate ac- 
tion of your Governmentin all its departments, 
and recently all its actions, proceeds upon the 
assumption that these rebel States had lost all 
the rights, of States. 

Among these acts may be mentioned those 
of July 13, 18G1, and 80th of same month. 
These have been held to be acts ''regulating 
commerce," (11 American Law Register, 419,) 
and they close the ports of the rebel States to 
all commerce and capture their ships upon the 
seas. And yet if these southern ports were ports 
of States having the rights of States, you could 
not only not close them "in regulating com- 
merce," but you could give no port any pref- 
erence over them. Again, in every revenue 
and tariff act which you jiassed in regulating 
commerce and the revenue since the war be- 
gan, you have not only "given preferences" 
against the southern ports, but you have pro- 
vided for their being totally shut to all com- 
merce. Could you provide in a tariff bill that 
the ports of New York shall be open, and those 
of Massachusetts closed? 

These are only examples. 

POSITION OF THE PRESIDENT. 

The President has assumed that the rebel 
States ceased to be States in the sense I am 
considering. 

Jefferson Davis was captured May 9, 1865 ; 
and the last army of the rebellion was surren- 
dered by Kirby Smith to Gemeral Canby, 26th 
of May, 1865. Then the military power of the 
rebellion was extinct, and actual war was ended, 
and the necessity for resort to mere war jww- 
ers and expedients ceased. Then, too, the 
laws and constitutions and powers of State gov- 
ernments of these States sji^rang into life and 
foi\;e if they were only put into abeyance by the 
war and could all come back into life and force 
when the war was gone. 

Onthe 29th of May, 1865, these old State 
constitutions had either come to be in force or 
they had not. If they were in force at all, then 
all their provisions were in force and binding, 
just as much as New York's constitution was ; 
and could only be changed in the mode pre- 
scril)ed by themselves. Is it competent for 
the United States to order New York to call a 
convention and change her constitution? Is it 
competent for the United States to order it 
changed in a way in total disregard to the modes 



of amendment which it prescribes as the only 
ones by which it can be amended ? 

Now what has happened in these rebel States ? 
Take one example as a specimen of all. On 
the 29th of May,_1865, President Johnson is- 
sued a proclamation appointing Holden pro- 
visional governor of North Carolina, and or- 
dered him, under prescribed rules, to call a 
convention for "altering or amending the con- 
stitution of North Carolina," &c.» But then 
that constitution of North Carolina prescribes 
how alone it can be altered. This mode is by 
bill read three times and voted for by three 
fifths of the members of each branch of the 
Legislature ; then this bill must be published for 
six months before the election of the next Le- 
gislature ; then the next Legislature, by a two-/ 
thirds vote in both Houses, must again ap^jrove 
the amendment ; and then it must be approved 
by a majority of the voters of the State ; and 
then it is part of the constitution. The* con- 
vention ordered by the President is wholly un- 
known to and in violation of the old constitution ; 
and if it was in force at all on the 29th of May, 
it could no more be altered in that way than 
the constitution of England could. lie or- 
dered a convention, he directed who should 
vote, who should be eligible to sit in the con- 
vention, and what oath they should take ; every 
one of which orders would have been in flagrant 
disregard of the constitution and laws of North 
Carolina, if, on that day, she had any. . 

Precisely the same thing, in principle', has 
occurred in every rebel State except, perhaps, 
three. By presidential proclamations new gov- 
ernments have . been professedly called into 
existence since the war was ended, and since 
the old constitutions and laws were revived out 
of abeyance, if they did revive. In every one 
the new constitutions and governments have 
been formed in almost total disregard of the 
provisions of the constitutions which they pro- 
fess to amend. Now, it is exactly impossible 
to comprehend the action of the Executive ex- 
cept upon the assumption that these State con- 
stitutions and their governments had'not revived 
so as to control the methods of their oivn amend- 
ment. 

No, no, Mr. Chairman, the President him- 
self tells the country, in the notable words of 
his proclamation, where it is that he deems that 
he gets this power to order States into exist- 
ence. His words are, "Whereas the fourth 
section of the fourth article of the Constitution, 
of the United States declares that the United 
States shall guaranty to every State in the 
Union a rej^ublican form of government, I, 
Andrew Johnson, President and Commander- 
in-Chief, " &c. _Sir, here is an unmistakable 
avowal of the source of his power and of the 
cause that called that power forth. If the old 
government and constitution of North Caro- 
lina had in fact come back to her out of the 
suspended animation which the rebellion had 
caused, then she on this 29th day of May al- 
ready had a republican constitution, and it 
needed no alterations to make it republican nor 
to guaranty one to her. 

Sir, let mo not be misunderstood. I am not 
pointing to these acts of the President as wrong, 



but to show that the President has dealt with 
this great question precisely in the view I main- 
tain, to wit, that these old State governments 
were so effectually overthrown that they do not 
come into force at the end of the war so as to 
furnish the basis of republican governments to 
these States ; and that it has become the busi- 
ness of the United States to guaranty such gov- 
ernments to them. They attack the President 
who hold that in these acts of the Executive, 
in creating new constitutions, he did so in vio- 
lation tmd disregard of living constitutions and 
republican governments already there. I do 
not atta«»iv him. If, indeed, these old State con- 
stitutions hft,d, on the 29th of May, 1865, re- 
sumed their sway over these States, as the new 
champions of the Presidentinthis House allege, 
then indeed has the man they champion, in dis- 
regarding and superseding these constitutions, 
become usurper. Well may the patriotic ex- 
ecutive head of this nation repeat once more 
the chronic prayer which, in all ages, weak 
adulation has extorted from men in power, 
"Deliver me from my friends." 

SUPREME court's POSITIOX. 

But I go on. 1 now show that the third or 
judicial branch of the Government is, by solemn 
and unanimous judgments, twice repeated, com- 
mitted, in principle, to the same exact conclu- 
sions. ■ ' 

But in presenting these high arguments — the 
judgments of the Supreme Court — let me make 
them at once, sei-ve the double end of making 
utterly conclusive and complete the position 
that a State may cease to have the governing 
rights of States by reason of rebellion, and of also 
answering what is urged so much as to the logi- 
cal and practical consequences of that jiosition. 

An able statement of these objections has 
been laid on our table. Their effect is — 

1. That it admits that a State may secede. 

2. That, as a consequence of this, Jefferson 
Davis cannot beimnishcd for treason any more 
than the Governor of Canada could be. 

3. That if we admit the rebels " were to be 
regarded as belligerents," then when we take 
them back we become liable for their debts. 

4. That individuals and not the States forfeit 
their rights by treason. 

In enforcing these objections my friend from 
New York [Mr. Raymond] says : 

"If they were out of the Union, when did they be- 
come so? They were once SUitcs in the Union. If 
they went out of the Union it was at some specific 
time and by so'me specific act." 

Before the Supremo Court shall be,made to 
answer, as it will, each one of these objections, 
permit nie, Mr. Chairmanj to allude to them ; 
and first to this question about the "specific 
act," which thcgentleman from New York [Mr. 
Raymond] asks. In respectfully answering his 
let me ask and answer some questions of sim- 
ilar legal aspect. 

I ask when and by what specific act does 
"tumult" become "war" inlaw? I answer, in 
the language of Chief Justice Marshall, when it, 
in fact, assumes "warlike array and strength." 
What in a civil war is the specific act and time 
which changes, in law, an " insurrectionary par- 



ty" into a "belligerent?" I answer, in the lan- 
guage of the Supreme Court, when in fact "the 
regular course of justice is interrupted by re- 
volt, rebellion, or insurrection, so that the courts 
of justice cannot be kept open." When, in law, 
does a revolt become civil war? I answei-, in 
the language of Wheaton* when "the insurrec- 
tion becomes, in fact, so strong as no longer to 
obey the sovereign, and to be able by war to 
make head against him." When, in law, and 
by what specific act, did the entire population 
of Virginia, including the loyal men, cease to 
be "friends," and become "enemies of the 
United States?" I answer, when, in fact, they 
became jf' belligerents. " 

If these answers by the highest authorities in 
the .world do not still answer what "specific 
act" deprived South Carolina of every right 
and power of a State, then I further answer 
him that it was that specific act which turned her 
citizens into traitors, took from her the loyal 
courts, statutes, Constitution, tribunals, officers, 
and Legislature, and which filled their places 
with treason and kept it tliere. And if the gon- 
tleman still desires to know the specific time 
when this hapj^ened, it will answer all the pur- 
poses of my argument to reply that it happened 
about four years before the time when he has 
told us it did, to wit,before she "surrendered." 
The destruction and supersedure of all loyaL 
government and law in South Carolina was a 
fact, not a laAv. It was this fearful "fact" 
which made her cease to be a State governing 
this Union, and not any ordinance of secession. 

The distinguished gentleman to whom I have 
alluded states the fourth objection which I have 
named in these words : 

"The people of a State may, by treason, forfeit 
their rights, but in a lepial point of vievf they have no 
power to alfect the condition of a State in the Union." 

That is, turned out of metaphysics into Eng- 
lish, every inhabitant of a State may, bytreason, 
come to have no political rights or powers what- 
ever as individuals except the right to be hung ; 
but the same individuals, put into a bundle and 
called a body-politic or State, have all i3olitical 
rights and powers, and can govern this Union! 
Now, a plain man would have difficulty in being 
able to see a living, acting, ruling State where 
tliere was no constitution, court, or law, and 
where there were no inhabitants, all these hav- 
ing been hung for treason. Such a man would 
be dull enough to conclude that if you hung for 
treason all the people required to make up the 
body-politic called a State the State would at 
least be in affliction. 

But, Mr. Chairman, it was unfortunate for 
this distinction between the political State and 
its jieople that it has repeatedly encountered 
the ordeal of the Supreme Court and has been 
utterly discarded by it. 

In 3 Dallas, 93, that court says : 

"A distinction is taken at bar between a State and 
the people of a State. It is a distinction I am not 
cnpable of comprehending. By n. State formhiir a 
republic, (j-'peaking of it as a moriil person,) I do not 
moan the Legislature of the State, the Executive of 
the State, or the.iudiciary, but all the citizens which 
compose the State, and are, if I may so express my- 
self, integral parts of it, all together forming a body- 
politic." 



6 



The same repudiation of a distinction between ' 
a bod^'-politic and its individual members is in 
the ••Prize Cases" hereafter cited. 

Two years before the objections I have quoted 
were so ably uitered, they had b'een pressed, 
with learning, zeal, and ability equal to his, 
upon the consideration of the Supreme Court 
in these "Prize Cases," (2 Black, 635,) and 
had been discarded unanimously by that court, 
nine judges sitting, including Taney. I say it 
was unanimous because all the court agree that 
after the passage of the act of Congress of 13th 
July, 18(31, recognizing the existence of the war, 
every inhabitant of the rebel States became 
•'enemies" of the United States and "belli- 
gerents." 

I atSrm that the reasoning and .judgment of 
this case settle and establish each one of the 
following propositions : 

1. From the seventh paragraph of the Sylla- 
bus (page 63G) I quote and affirm that the late 
"civil war between the United States and the 
so-called confederate States," had "such char- 
acter and magnitude as to give the United 
States the same rights and powers which they 
might exercise in the case of a foreign war." 

2. From the ninth paragraph of the same 
Syllabus I quote and affirm that " all persons 
rtsiding within the territory occupied by the 
hostile (rebel) party in this contest were liable 
to be treated as enemies though not foreigners. ' ' 

8. I affirm again, quoting from the opinion 
of the court (page 673) that "it is a proposition 
never doubted that the belligerent party who 
claims to be sovereign may exercise both helli- 
gerent and sovereign rights. ' ' 

4. I affirm that precisely the same objection 
was urged in this case as those I have quoted ; 
and were stated by the court in these words, 
"that insurrection is the act of individuals and 
not of the government or sovereignty," and 
"that the individuals engaged are the subjects 
of law," and "that secession ordinances are 
nullities and inefiectual to release any citizen 
from his allegiance." 

To these objections the Supreme Court re- 
plies: 

"This argument rests on the assumption of two 
propositions, each of which is without foundation 
uiTon the established law of nations. It assumes that 
where a civil war exists the party belligerent claim- 
ing to be sovereign cannot, for some unknown reason, 
exercise the rights of belligerents, though the revo- 
lutionary party may." 

iVgain the court replies to these objections in 
the following words, the court italicising the 
words: 

^"lu organizing this rebellion they hare acted as 
Staien claiming to be sovereign over all person^ and 
property." 

In December, 1865, the ten judges (2 Wallace, 
404) unanimously decided the same thing; that 
all the inhabitants, guilty and innocent, became 
belligerents and "enemies" of these United 
States. 

The results of these two decisions are that 
these i-obel States, 

1. Acted as States m organizing th^ rebellion. 

2. That all their citizens, innocent and guilty, 
wore thereby made ^^ enemies of the United 
Stales." 



3. That though they became * ' enemies ' ' that 

did not make them " foreign " States so as that 
when we take them back we must pay their debts. 

4. That, as the court decides that the United 
States may exercise over these people both "bel- 
ligerent " and " sovereign ' ' rights, therefore we 
may, as sovereign, try Davis for treason, al- 
though we did treat and hold these States as an 
"enemy's" country. 

5. As these States became " enemies' ' ' terri- 
tory, and all persons residing within it became 
"enemies of the United States," they cannot 
at the same time have ■been a people having any 
political rights to govern in this Union, unless 
indeed this Union can be governed^ljy a body of 
people every one of whom are held by its law 
to be the ' ' public enemies of the United States." 

Mr. DEMINGr. I would respectfully ask my 
friend from Ohio if h'e has any authorities on 
his minutes for the purpose of vindicating the 
position that the sovereign in a civil war may 
exercise both sovereign and belligerent rights? 

Mr. SHELLABARGER. If I understand 
the exact legal purport of the question asked 
by the distinguished gentleman, (and in refer-- 
ence to pure legal questions he knows as a law- 
yer right well that he who speaks on legal ques- 
tions must talk well or not talk at all,) 1 an- 
swer that I find authority in the prize cases to 
which I allude, that a sovereign may exercise 
both belligerent and sovereign rights. 

Mr. DEMING. I recognize the force of the 
decisions in the prize cases, ))ut I ajjpeal to my 
friend for the purpose of ascertaining whether 
he has fortified that opinion which he expresses, 
that in a civil war the sovereign may exercise 
sovereign as well as belligerent rights, outside 
of the authorities quoted in the prize cases. 

Mr. SHELLABARGER. I now apprehend 
the question of the gentleman, and I thank him 
for asking it, for it furnishes me an opportunity 
of saying that I have looked ^through the an- . 
thorities on this subject, and in the modern and 
respectable authorities of the world I find no 
dissenting voice. The doctrine will be found 
not only in the text and notes of Wheaton, but 
in Vattel, in Ward, in Halleck, and Bello. 

Mr. DEMING. I would ask my friend if 
he has looked over the notes in Lawrence's 
Wheaton for the purpose of seeing the conflict- 
ing authorities which Lawrence there quotes 
on this specific point ; that is to say, in a civil 
war it is incompetent for the sovereign to ex- 
ercise both civil and belligerent rights. 

Mr. SHELLABARGER. I answer the gen- 
tleman that I have looked through those notes 
carefully and thoroughly, and that while, if my 
memory is not now at fault, I find some unim- 
portant conflict of authority, I do not find any 
conflict that at all impairs the force of settled 
law as established in the prize cases. 

Sir, it is a weak and inadequate statement of 
the truth to say that he mocks the law, offends 
the loyal sense of the people, and insults their 
common sense who affirms that that people or 
those States had any rights of government in 
this LTnion, every man, woman, and child of 
whom have been pronounced by two unanimous 
-judgments of the Supreme Court of the Repub- 
lic to be, in contemplation of the supreme law 



of that Republic and of the law of nations, the 
public enemies of the United States. 

Docs the gentleman yet ask for " the specific 
act" that deprived these States of all the rights 
of States, and made them ' ' enemies ?' ' I once 
more answer him in the words of the Supreme 
Court that the specific acts were, they cause- 
lessly waged against their own Government a 
"war which all the world acknowledge to have 
been the greatest civil war known m the his- 
tory of the human race. ' ' That war was waged 
by these people "as States," and it went 
through long, dreary years. In it they threw 
off and defied the authority of your Constitu- 
tion, laws, and Government; they obliterated 
from their State constitutions and laws every 
vestige of recognition of your Govei-nment; 
they discarded all official oaths, and took in , 
their places oaths to support your enemy's gov- 
ernment. They seized, in their States, all the 
nation's property; their Senators and Repre- 
sentatives in your Congress insulted, bantered, 
defied, and then left you ; they expelled from 
their land or assassinated every inhabitant of 
known loyalty ; they betrayed and surrendered 
your armies ; they passed sequestration and 
other acts in flagitious violation of the law of 
nations, making every citizen of the United 
States an alien enemy, and placing in the treas- 
ury of their, rebellion all ^noney and property 
due such citizens. They framed iniquity and 
universal murder into law. They besieged, for 
years, your capital, and sent your bleeding 
armies, in rout, back here upon the very sanc- 
tuaries of your national power. Their pirates 
burned your unarmed commerce upon every 
sea. They carved the bones of your unburied 
heroes into ornaments, and drank from goblets 
made out of their skulls. They poisoned your 
fountains, put mines under your soldiers' pris- 
ons ; organized bands whose leaders were con- 
cealed in your homes, and whose commissions 
ordered the torch and yellow fever to be carried 
to your cities, and to your women and chil- 
dren. They planned one universal bonfire of 
the North from Lake Ontario to the Missouri. 
They murdered by systems of starvation and 
exposure sixty thousand of your sons, as brave 
and heroic as ever martyrs were. They de- 
stroyed in the five years of horrid war another 
army so large that it would reach almost around 
the globe in marching columns ; and then to 
give to the inferilal drama a fitting close, and to 
concentrate into one crime all that is criminal 
in crime, and all that is detestable in barbarism, 
they killed the President of the United States. 

Mr. Chairman; I allude to these horrid events 
of the recent past not to revive frightful mem- 
ories, or to bring back the impulses toward 
the perpetual severance of this people- which 
they provoke. I allude to them to remind 
us how utter was the overthrow and oblitera- 
tion of all government, divine and human ; how 
total was the wreck of all constitutions and 
laws, political, civil, and international. I al- 
lude to them to condense their monstrous enor- 
mities of guilt into one crime, and to point the 
gentleman from New York [Mr. Raymond] to 
i^, and to tell him that was "the specific act." 
Ni"" I^lr. Chairman, if the combined forces 



of the Constitution and the Public Law, the ob- 
vious dictates of reason, justice, and common 
sense, and these enforced by the api^roval of 
repeated and unanimous judgment;^ of the Su- 
preme Court can settle for our own Govern- 
ment any principle of its law, then it is estab- 
lishedthat organized rebellionsare not "States," ' 
and that these eleven distinct political treasons, 
which they organized into one, and called it 
"the confederate State's," had no powers or 
rights as States of this Union, nor had the peo- 
ple thereof 

RESTORATION OF THE STATES. 

If these States lost their powers and rights as 
States, by what authority and means are tliey 
restored ? Is it accomplished by mere cessa- 
tion of war and the determination of the rebel 
inhabitants to resume the powers of States ; or 
is this Government entitled to take jurisdic- 
tion over the time and manner of their return? 

I hold that the latter is the obvious truth. 

Let it be admitted that these rebel districts 
may, without the assent of the United Si;ates, 
and without regard to the state of their loyalty, 
resume, at pleasure, all the powers of States — 
this Government having no jurisdiction to de- 
termine upon the question of their loyalty or 
the republican character of the new State gov- 
ernments — then w4 have this result. 

There were, during the first years of the war, 
twenty-three rebel Senators, including Breck- 
inridge and another. That was more than one 
third of the Senate. These twenty-three in 
the Senate are enough to deprive the United 
States of all power ever to make a treaty, or 
to expel a member from the Senate, or to re- 
move from office by impeachment a rebel Sec- 
retary of War like Floyd, or a rebel Secretary 
of the Treasury like Cobb, or a rebel L'nited 
States judge like Humphreys, or an imbecile 
President who thought secession unconstitu- 
tional, and its i^revention equally unconstitu- 
tional, like Buchanan. How long, sir, could 
your Government survive with such a Senate, 
one third rebel? How long can you live de- 
prived of these powers vital to every Govern- 
ment? Not a week, sir. 

But, Mr. Chairman, this is precisely what 
might have occurred at any day during this re- 
bellion if cessation of war entitles the revolted 
States to resume the powers of States in defi- 
ance of the will of this Government ; and it is 
precisely what may occur to-day if these States 
be indeed disloyal yet at heart. If, after ex- 
hausting "all the resources of wai-" for the 
overthrow of the Government, and failing, it 
is, indeed, competent for them to abandon 
these resources, and resort to "the resources 
of statesmanship," and resume at once the high 
powers of States in the Union, without the as- 
sent of such Government, then there has not 
been an hour since the rebellion began, and 
the hour is not now, in which this Government 
has not literally been in the power and at the 
mercy of the rebellion. 

Is it replied to what has been said in regard 
to the power for mischief of disloj^al Senators 
in the case which I have stated, expel them? 
the reply Is vain, liocnn^'i^ the same tv y- 



8 



three who can prevent any impeachment or the 
formation of any treaty are also enough to pre- 
vent any expulsion under'the Constitution. 

Is it again replied, exclude these rebels from 
the .Senate under the clause making each House 
the judge of the elections and qualifications of 
its members? the reply is obviously frivolous. 

[Here the hammer fell.] 

Mr. LE BLOND moved that the time be 
extended. 

The motion was agreed to. 

Mr. SHELLABAUGER. Permit me to ex- 
press my profound gratitude for this indulgence, 
on which I will not long trespass. 

1. Ifunderthisclauseyou may exclude a Sen- 
ator duly elected and qualified in every other 
respect and sense than that he comes from and 
is elected by disloyal States, then you yield the 
whole argument, and accord to this Govern- 
ment all the jDOwers of self-preservation which 
I am insisting upon. The difference is that you 
find the power of self-protection under a clause 
by which each House is compelled to judge sep- 
arately of the election and qualification of its 
members ; and hence you occupy a position 
where you may have twenty-four States in the 
Union, in the Senate; thirty-four in the Union, 
in the House ; and Heaven knows how many 
in the Union for electing a President. 

2. If you reply, I will reject these twenty-three 
rebel Senators, not because tSieir States can elect 
none, but because they are "rebels," in the 
case you jnit ; the reply is vain. When Ma- 
son, Slidell, Davis, and Breckinridge last took 
their seats in your Senate, who knew, or could 
have proved, that they came there to embarrass 
and destroy your Government? Could either 
have been excluded from any known or ascer- 
tainable personal disqualification? 

No, Mr. Chairman, there is no escape. If 
the United States has no power to decide, as a 
great and sovereign people acting through their 
Government, what shall be a "State" in her 
high Union, and cannot determine when, out 
of the wreck and ruin of old States, have been 
formed new republican States, based upon the 
only foundations vxpon which a republican State 
of this Union can be built, that of the general 
consent and loyalty of its people, then indeed 
is your Government not so much as "a rope of 
sand." It is a monster compelled by the or- 
ganic law of its life to terminate that life by 
self- slaughter. 

But, sir, such is not the law of its life. I 
have already shown that the President has dis- 
carded such conclusions. I now invoke the 
authority of the highest court of the. Republic, 
and by that I show that it has decided this ques- 
tion also. 

I state the efl"ect of this decision in the lan- 
guage of a distinguished law author (see 1 
Bishop, Crim. Law, sec. 133.) He says: 

" It has been settled by adjudication that it is for the 
President and the two Houses of Congress to decide 
whether a particular government within a State is 
republican or not; and to recognize it if it is, and to ' 
refuse to recognize it if it is not, and the ad.iu(iication 
of the matter by them is conclusive and binds the 



courts and tho nation. It is not therefore for any 
class of persons in a State which has ceased to have a 
government to set up a government of their own." 

The language of the court is, (7 Howard, 42 
and -43:) 

"Under this article of the Constitution it rests ^ith 
Congress to decide which go^'ernmont" of the two set 
up in Rhode Island "is the established one, for as the 
United States guaranties to each State a republican 
government. Congress must necessarily determine 
what government is established in a State before it 
can decide whether it is republican or not. When the 
Senators and Roprtsentativcs of a State are admitted 
into the councils of the Union the authority of the 
government under which they are appointed is recog- 
nized by the proper constitutional authority. And its 
decision is binding on every other department of the 
Government." * * * * * * * * 

" Undoubtedly a military government established 
as the permanent govcrnmentof the State, would not 
bo a republican government, audit would be the duty 
of Congress to overthrow it." 

Mr. Chairman, here I mustclose. 

If it is asked me now, granting your position 
that these States in revolt ceased to have any 
powers of government in the Union, still have 
not new ones been reorganized safe and fit to 
resume these high powers? I answer, sir, the 
question, "is it safe, and are they fit," are the 
stupendous /acis now on trial by the American 
Congress. It was the whole end of the feeble 
argument which I have concluded to vindicate 
my Government's power to take jurisdiction of 
this inquest and holfl this trial. 

But if I am depianded by what standard of 
fitness, and what guarantees for safety, Con- 
gress shall decide these great facts now on trial, 
it will serve all the purposes of this argument 
and this hour to reply that in the true and high 
sense and spirit of the memorable words of the 
President of the United States I find a fitting 
answer. He says : 

" No State can be regarded as thoroughly organ- 
ized, which has not adopted irreversible ouarantecs tor 
the rights of the freedmen." 

Mr. Chairman, let this noble utterance — " ir- 
reversible guarantees for the rights^ ^ of Amer- 
ican citizens of every- race and condition — be 
written with pen of iron and point of diamond 
in your Constitution. Let it thus be made 
"irreversible" indeed, by the action of the 
State, in the only way it can be made irrevers- 
ible ; and then, to establish this and every 
other guarantee of the Constitution .upon the 
only sure foundation of a free republic — the 
equality of the people and of the States — make, 
by the same organic law, every elector in the 
Union absolutely equal in his right of repre- 
sentation in that renovated Union, and I am 
content. 

Let the revolted States base their republican 
State governments upon a general and sincere 
loyalty of the people and come to us under the 
guarantees of this renewed Union, and we hail 
their coming and the hour that brings them. 

If you ask again, "Suppose such general 
loyalty should never reapjiear, shall they be 
dependencies forever?" 

Sir, convince me that the case is supposable, 
then with deepest sorrow I answer — forever! 



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